State v. Cullen, 311 Neb. 383

Background

Cullen worked as a nanny for infant Cash; on Feb. 28, 2013 Cash was found unresponsive and later died from severe brain injuries consistent with nonaccidental trauma.
Cullen gave investigators multiple, inconsistent accounts (including slips/falls and hitting a door); medical experts testified injuries were consistent with shaking/impact and likely occurred while Cullen was caring for Cash.
Cullen was convicted of intentional child abuse resulting in death and sentenced to 70 years to life; this Court affirmed on direct appeal, leaving unresolved on the record one ineffective‑assistance claim about an uncalled medical expert.
Cullen filed a verified postconviction motion alleging four grounds of ineffective assistance of trial counsel (failure to investigate defenses/witnesses, failure to hire/use experts and a trial consultant, failure to advise about/testify and meet, and failure to depose/prepare for cross‑examination) and one claim of ineffective assistance of appellate counsel (failure to raise trial‑counsel claims on appeal).
The district court dismissed the postconviction motion without an evidentiary hearing for failure to plead sufficient factual allegations showing prejudice.
The Nebraska Supreme Court affirmed, holding Cullen’s allegations were conclusory or lacked the required specificity to warrant an evidentiary hearing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Trial counsel failed to investigate defenses and potential witnesses (including parental suspicion)	Cullen: counsel did not follow up on leads, contact named witnesses, or develop alternate theories implicating parents	State: allegations merely list potential witnesses; no specific facts about what witnesses would say or how outcome would change	Dismissed — insufficiently specific; no reasonable probability of different outcome
Trial counsel failed to hire/use expert witnesses and the trial consultant	Cullen: consultant recommended experts; counsel failed to retain or present them	State: Cullen gave only names and conclusory assertions; no specific expert testimony alleged or showing of prejudice	Dismissed — conclusory, no specific testimony alleged
Counsel failed to meet/advise about Cullen’s right to testify	Cullen: counsel never consulted; she would have testified to her version and expressed remorse/emotion	State: Cullen did not specify what new testimony she would give; her prior police statements (four versions) already in evidence; no prejudice shown	Dismissed — no specific proposed testimony and record contradicts prejudice
Counsel failed to prepare: no depositions or cross‑examination preparation of experts	Cullen: no depositions taken and cross‑examination inadequately prepared	State: no allegation what depositions would have revealed or what questions would have aided defense	Dismissed — lacked specific allegations tying preparation to different outcome
Appellate counsel failed to raise trial‑counsel ineffective assistance on direct appeal	Cullen: appellate counsel did not meet or advise her to preserve trial‑counsel claims	State: layered claim fails because Cullen did not adequately allege trial‑counsel ineffectiveness or resulting prejudice	Dismissed — no prejudice shown because trial‑counsel claims were insufficiently pleaded

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (two‑part test for ineffective assistance: deficient performance and prejudice)
State v. Britt, 310 Neb. 69 (2021) (postconviction standard: motion must allege facts that, if proved, show constitutional violation; hearing required only when allegations are factual and substantive)
State v. Parnell, 305 Neb. 932 (2020) (layered ineffective‑assistance claims: appellate counsel’s failure to raise trial‑counsel claim requires showing trial counsel was ineffective)
State v. Munoz, 309 Neb. 285 (2021) (postconviction movant must specifically allege what unpresented witnesses would have testified)
State v. Iromuanya, 282 Neb. 798 (2011) (defense counsel bears primary responsibility to advise about right to testify; prejudice inquiry under Strickland applies)
State v. Cullen, 292 Neb. 30 (2015) (direct appeal affirming conviction; record was inadequate to resolve one ineffective‑assistance claim regarding an uncalled medical expert)